Haso v Kofana [2013] SBHC 144; HCSI-CC 70 of 2009 (22 August 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 70 of 2009

BETWEEN:

MARGARET HASO
Claimant

AND:

JACINETH KOFANA, DAVID IRO,
KISINA, BEAUTY TEWAIA, JOHN
KOBIAU, EDDIE IAMAE, TURNBUL
TAELANAFO, ANTHONY FUNUGA,
DAVID UMAKI, KALA BELO GAGAME,
TONY HANSOL, ALICK KITALOA,
ESTHER MAELOFIA, SIMON KAENI,
JACK OLO, RI OHTOA, OBED MELANI,
ROYMOND FUNU, NIKI MAENA,
GEORGE DAUWI, GRACE, ROKATA
HESLEY, FREDA KAKA, BILLY TISA,
JOSEPH TUGA NUNUA, KWAIAMA,
WILLIAM WALE MAMANI, PETER
RAMO, KELLY MASLYN, RAYMOND
ISUI AND SIMON KAENE
Defendants

DATE OF JUDGMENT: 22 August 2013

Mr. Rano for Claimant
No attendance by all Defendants

JUDGMENT

1. The Claimant in this case is Margaret Haso. In her amended claim filed on 21 April 2009, she seeks the following relief: (1) An order for immediate possession of the Perpetual Estate in Parcel Number 191-077-12 ("the land"); (2) A permanent restraining order against all the Defendants, their agents, servants, wantoks, relatives or otherwise from entering the land and effecting any structures thereon; (3) Damages for trespass; (4) Costs.
   
2. In their Amended Defence, to the amended claim, the Defendants admitted paragraph 1 to the extent that the Claimant only acquired title to the Perpetual Estate in Parcel Number 191-077-12 in 2005; Paragraph 2 is admitted to the extent that the perpetual estate is registered in the Claimant's name, but the Defendants say that they had validly purchased the lands and are people in actual occupation of those lands with overriding interest and protected under section 114 (g) of the Land and Title Act (Cap. 133); paragraph 3 is admitted to the extent that the Defendants did not get consent and permission from the Claimant to build or erect houses on the land, however the Defendants say that permission and consent to build or erect houses on the land was obtained from Mr. Savino Laugana and Mr. Thomas Botu or relatives authorised to sell the lands prior to 2005 when Savino Laugana and Mr. Thomas Buto were registered title holders of the perpetual estate in PN 191-077-12; paragraph 4 is denied and the Defendants say their actions in PN 191-077-12 did not amount to trespass, they were legally entitled to build or erect houses in PN 191-077-12; 5. Paragraph is denied and the Defendants say that the Claimant is not entitled to the relief sought.
   
3. In their counter-claim the Defendants seek the following relief: (a) Declaration that the Defendants have the right in law and equity to possess and occupy the blocks of land within PN 191-077-12 as claimed; (b) that the Defendants clearly demarcated the boundaries of their blocks of land purchased from the previous perpetual estate holders and to provide such demarcation to the Claimant within 60 days; (c ) that within 30 days of receipt of complete declarations of the land the Claimant will subdivision of PN 191-077-12 in the names of the Defendants; (d) that the relevant fixed term estates be transferred to the respective Defendants; (e ) that the cost sub-division be borne by the Claimant; (f) that the lease fixed-term estates be executed in the appropriate forms and entered on the registry; (g) Any other orders deem fit by the court.
   
4. The Claimant denies being liable for payment made by any of the Defendants in respect her perpetual estate while it was still jointly owned the previous owners, Thomas Botu and Savino Laugana. She further contends that any actions that any of the Defendants may have against the two previous holders has been time barred under the limitation Act.
   
5. The Claimant is related to Thomas Botu and Savino Laugana. She is the daughter of their sister. According to them, she would be a member of their tribe. As previously said herein, Thomas Botu and Savino Laugana transferred their perpetual estate to the Claimant without consideration. That is consistent with section 171 of the Land Title Act (Cap. 133) ("the Act") which section says that an owner of an estate may transfer his estate with or without consideration.
   
6. The title to the land was transferred to the Claimant under section 112 of the Act subsection (1) reads: "perpetual estate in land consists of the right to occupy, use and enjoy in perpetuity the land and its produce, subject to the payment of any rent and the performance of any obligations for the time being incident to the estate, and subject to such restrictions as may be imposed by or under this Act or any other written law".
   
7. At the present time, the land is being occupied, used and enjoyed by the Defendants. There is evidence that many of the Defendants have in total paid more than $130,000.00 to occupy the land. Most of this money was received by Kwale Bereto, Mariano Toki, Margaret Siosi and Susan Pegoa. Most of the payments were made between 1981 and 1996. Receipts were issued in respect of the payments. It is obvious that these payments were never made to Thomas Botu and Savino Laugana, who were the registered owners of the perpetual estate.
   
8. The Law requires that that sale of registered land must be made in writing. This is provided for in Section 117 (1) which says "No registered interest in land shall be capable of being created or disposed of such interest otherwise than in accordance with this Act and every attempt to create or dispose of such interest otherwise than in accordance with this Act shall be ineffectual to create, extinguish, transfer, vary or affect any such interest. See Wale v Fagani [2007] SBHC 33; HCSI-CC 229 of 2006.
   
9. There is an agreement made on 13 April 1983 between Mariano Toki, Susan Pegoa and Alick Tua with Belo Gagamae. That was for the sale of land known as Tanava. The premium for the land was $8,000.00. There was no stamp duty on that agreement as required by section 9 of the stamp duties Act (Cap 126). As this agreement had not been duly stamped, it is invalid cannot be pleaded or admitted as evidence either in law or in equity. (See Austree Enterprises Pty Ltd Zhong Wu v. Skiyao Guo and others SICOA CAC No: 7 of 2012. The earliest claim of purchase was made in 1985 by Peter Ramo. The most recent was in 2010 by Jaccineth Kofana, although she claimed to have purchased the land in 1994. Neither of them took proceedings against the Claimant either for the recovery of the land or for specific performance within 6 years or 12 years when the cause of action accrued. In the circumstances, these purchasers are statute barred from taking any action in relation to their asserted contracts.
   

In conclusion, summary judgment is granted in favour of the Claimant. An issue regarding fraud has been raised in this proceeding by the Defendants. It has not been particularised. It is therefore not considered in this decision. Judgment is entered for the Claimant. Her costs are to be paid by the Defendants. Order accordingly.

THE COURT